Tracey v Irish Times Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 30 July 2019
• Neutral Citation: [2019] IESC 62
• Date: 30 July 2019
• Court: Supreme Court
• Docket Number: [Record No. 454/2011]

BETWEEN:

KEVIN TRACEY

PLAINTIFF/APPELLANT

V.

IRISH TIMES LIMITED, GERALDINE KENNEDY

AND

EOIN McVEIGH

DEFENDANTS

[2019] IESC 62

MacMenamin J.

MacMenamin J.

Dunne J.

Peart J.

[Record No. 454/2011]

[High Court Record No. 2008/11101P]

THE SUPREME COURT

Defamation – Press freedom – Balance of justice – Appellant seeking to appeal against High Court orders dismissing defamation proceedings – Whether the interests of justice, and the public interest, will best be served when a litigant in person is asked to argue an important and complex legal issue

Facts: The High Court (Kearns P), on the 27th October 2011, dismissed four defamation proceedings, along with two other cases which had been initiated by the appellant, Mr Tracey. The appellant appealed those orders. The appeals were originally brought to the Supreme Court. They were subsequently remitted to the Court of Appeal under the 33rd Amendment to the Constitution. Later, they were remitted back to the Supreme Court, pursuant to Article 64. On the 20th and 21st June, 2019, the Supreme Court dealt with the appeal, along with the other appeals brought by the appellant concerning similar High Court orders made on the same day. The six appeals, therefore, fell into two categories. The first group of four was referred to simply as the “defamation appeals”. They arose from coverage of a District Court proceeding. The second group of just two concerned other forms of proceedings.

Held by MacMenamin J that the legal issues which arose may have application well beyond this case; the issue of press freedom is fundamental to a democratic society. He held that the extent of legal protection for the media in coverage of court proceedings goes beyond the scope of s. 18 of the Defamation Act 1961, and comes under s. 17 of the Defamation Act 2009; the meaning of the terms “fair and accurate” is a significant legal issue in this context, and generally, both to the public and the media. MacMenamin J held that whether the interests of justice, and the public interest, will best be served when a litigant in person is asked to argue an important and complex legal issue must be an open question, which itself may raise constitutional and ECHR issues. He held that the balance of justice required that this important issue should be remitted to the High Court for determination in accordance with law. He held that what tilted the balance in this appeal was that the case was, in fact, not “doomed to fail”, although he refrained from going any further.

MacMenamin J held that he would, therefore, allow the appeal.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019

1 On the 27th October 2011, the High Court, (Kearns P.), dismissed four defamation proceedings, along with two other cases which had been initiated by the appellant. The appellant appealed these orders. The appeals were originally brought to this Court. They were subsequently remitted to the Court of Appeal under the 33rd Amendment to the Constitution. Later, they were remitted back to this Court, pursuant to Article 64. On the 20th and 21st June, 2019, this Court dealt with this appeal, along with the other appeals brought by the appellant concerning similar High Court orders made on the same day. The six appeals, therefore, fall into two categories. The first group of four will be referred to simply as the ‘defamation appeals’. They arise from coverage of a District Court proceeding; the second group of just two, concern other forms of proceedings.

The Defamation Appeals

2 The defamation appeals are:

• Kevin Tracey v. Irish Times Limited, Geraldine Kennedy & Eoin McVeigh (High Court Record No. 2008/ 11101P, Supreme Court Appeal No. 454/2011). This concerned an article in the Irish Times.

• Kevin Tracey v. Independent Star Limited & Gerard Colleran (High Court Record No. 2008/ 11102P, Supreme Court Appeal No. 455/2011). This concerned an article in the Irish Daily Star.

• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Gerry O'Regan, Stephen Rea and Tim Healy (High Court Record No. 2008/ 11103P, Supreme Court Appeal No. 456/2011). This concerned an article in the Evening Herald.

• Kevin Tracey v. Independent Newspapers (Ireland) Limited, Philip Molloy, Paul Dunne, Gerry O'Regan & Michael Denieffe (High Court Record No. 2008/ 11104P, Supreme Court Record No. 457/2011). This concerned an article in the Irish Independent.

For reference purposes, the other appeals are:

• Kevin Tracey & Anor. v. Ireland & Ors. (High Court Record No. 2009/ 11765P, Supreme Court Record No. 168/2012)

• Kevin Tracey & Anor. v. Crosbie & Ors. (High Court Record No. 2012/00397, Supreme Court Record No. 2012/396/12 and 392/12)

The Defamation Appeals: Context

3 All the articles in the defamation appeals were published on 17th September, 2004, the day after District Court proceedings in which the appellant was prosecuted for assault, but received the benefit of s.1(1)(i) of the Probation of Offenders Act, 1907. In each case, the defendants, who are now the respondents in this appeal, pleaded that the press coverage was privileged as being covered by s.18 of the Defamation Act, 1961, or the common law protection regarding contemporaneous reportage of court proceedings.

4 This judgment concerns the first of the defamation proceedings, where the Irish Times, Geraldine Kennedy and Eoin McVeigh are the respondents. It gives consideration to tests or principles applicable in a situation such as this. This judgment will be referred to in the other judgments delivered today as the ‘ Irish Times judgment’.

The Irish Times Article

5 The Irish Times article was printed on an inside page of the newspaper on the 17th September, 2004. It was headed ‘Man guilty of assault took action against judge’. The appellant's last name was incorrectly spelt throughout the article. The text of the article, some parts of which are now emphasised, read:

‘ A man who last year took a noise nuisance action against his neighbour, Circuit Court Judge Michael White, was yesterday convicted of assaulting another neighbour.

Kevin Treacey [sic], an engineer from Park Lane, Chapelizod, Dublin, was given the Probation Act because the assault, a push, was of a minor nature, Judge Michael Connellan ruled. In March last year, Mr. Treacey was ordered to pay €1,500 legal costs of an aborted noise nuisance action against White. Mr. Treacey had claimed he suffered nuisance from Judge White's children playing their musical instruments.

He withdrew the complaint before it went to hearing, saying the nuisance had abated since the court case was initiated. He was ordered to pay the legal costs of the action because he failed to turn up in court to say he was doing so.

Yesterday's case arose out of a dispute over local children playing football outside the Treacey home in April last year, shortly after the noise nuisance action had finished.

Dublin District Court heard Mr. Treacey went out three times to ask them to move away when the ball hit the wall of his house. The children, including two whose mother was the injured party, Mrs. Gabby Skinner, had to play on the street because there were young people drinking in the only other area available.

The ball eventually hit one of Mr. Treacey's windows, and he went up and picked the ball up. Mrs. Skinner asked for the ball back, and during the confrontation she was pushed by Mr. Treacey, who denied touching her.

Judge Connellan said ‘As far as I am concerned, I am satisfied there was an assault on Mrs. Skinner, but it was of a very technical nature. The judge granted leave to appeal, saying that, even though there was no penalty, the Probation Act was still a criminal conviction.’ (Emphasis added)

A question which arises later in this judgment is whether, arguably, the emphasised parts of the article may not be covered by the defence of privilege.

6 The events described in this judgment, and the proceedings which followed, were initiated prior to the passing of the Defamation Act, 2009. They therefore fall to be considered under the terms of the Defamation Act, 1961. Section 17 of the Defamation Act, 2009 also contains a fuller provision. It is unnecessary to quote it. Although the publication in question took place on 17th September, 2004, the Irish Times proceedings were initiated on the 23rd December, 2008, more than four years afterwards. The appellant, who appears on his own behalf, pleaded that the article damaged him in his good name, and professional reputation. He sought damages under various headings. A statement of claim followed more than a year later, on the 3rd February, 2010. There, Mr. Tracey claimed that, as a result of the article, he had suffered psychological damage and trauma, and contended the article was actuated by malice.

7 But one plea in the statement of claim is relevant to this appeal; it was to the effect that, in fact, the District Court prosecution had actually been dismissed under the Probation of Offenders Act, 1907 on the 16th September, 2004. Thus, Mr. Tracey submits he was not ‘ convicted’ of the assault.

The Extent of the Legal Protection

8 Section 18 of the Defamation Act, 1961 provided:

‘A fair and accurate report published in any newspaper or broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State or in Northern Ireland of proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland shall , if published or broadcast contemporaneously with such proceedings, be privileged . …’ (Emphasis added)

9 But, as the leading textbooks point out, this section does not specifically set out whether the privilege provided by the section is absolute or qualified in nature. (See Cox and McCullough, ‘The Law of Defamation’, Clarus...